Ex-10.1 Amended and Restated 2002 Omnibus Stock






Amended and Restated

Chico’s FAS, Inc.




2002 Omnibus Stock and Incentive Plan

(Effective June 26, 2008)




      



      



      



      



      



As Approved By the Company’s Stockholders on June 26, 2008




 









 








Amended and Restated

Chico’s FAS, Inc.

2002 Omnibus Stock and Incentive Plan

Table of Contents





	 	 	 	 	 
	ARTICLE 1 Establishment; Purpose; Awards
	 	 	1	 
	1.1 Establishment; Purpose
	 	 	1	 
	1.2 Types of Awards Under Plan
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 3 Eligible Persons
	 	 	5	 
	3.1 Eligibility
	 	 	5	 
	3.2 Selection of Participants
	 	 	5	 
	3.3 General Effect of Award
	 	 	5	 
	 
	 	 	 	 
	ARTICLE 4 Shares Subject to the Plan and Maximum Awards
	 	 	6	 
	4.1 Sources of Shares Available for Grants and Limits on Shares Subject to the Plan
	 	 	6	 
	4.2 Maximum Awards
	 	 	7	 
	4.3 Adjustments to Limitations
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 5 Administration
	 	 	8	 
	5.1 General
	 	 	8	 
	5.2 Power and Authority
	 	 	8	 
	5.3 Other Factors; Determinations Final
	 	 	10	 
	5.4 Quorum; Actions
	 	 	10	 
	5.5 Delegation
	 	 	10	 
	5.6 No Liability; Indemnification
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 6 Stock Options and Stock Appreciation Rights
	 	 	11	 
	6.1 General Method of Grant
	 	 	11	 
	6.2 Number of Shares
	 	 	11	 
	6.3 Option or SAR Price
	 	 	11	 
	6.4 Date of Grant
	 	 	12	 
	6.5 Method of Payment
	 	 	12	 
	6.6 Option or SAR Exercise Period
	 	 	13	 
	6.7 Certain Interpretations
	 	 	13	 
	6.8 Exercise and Vesting of Options and SARs
	 	 	14	 
	6.9 Multiple Grants in Single Agreement
	 	 	15	 
	6.10 Minimum Exercise
	 	 	15	 
	6.11 Other Provisions
	 	 	15	 
	6.12 Special Provisions for Incentive Stock Options
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 7 Performance Awards, Restricted Stock and Restricted Stock Units
	 	 	16	 
	7.1 Awards of Performance Awards, Restricted Stock or Restricted Stock Units; Restriction Period
	 	 	16	 
	7.2 Restricted Stock
	 	 	17	 
	7.3 Restricted Stock Units
	 	 	17	 






 









 







Table of Contents

(CONTINUED)




	 	 	 	 	 
	7.4 Performance Awards
	 	 	18	 
	7.5 Performance Based Compensation
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 8 Miscellaneous
	 	 	19	 
	8.1 Adjustment of Number of Shares, Etc.
	 	 	19	 
	8.2 Transferability
	 	 	20	 
	8.3 Change in Control
	 	 	20	 
	8.4 Beneficiary Designation
	 	 	20	 
	8.5 Tax Withholding
	 	 	20	 
	8.6 Gender and Number
	 	 	21	 
	8.7 Choice of Law
	 	 	21	 
	8.8 No Stockholder Rights
	 	 	21	 
	8.9 Amendments; Exchanges, Termination or Suspension
	 	 	22	 
	8.10 Listing and Registration of Common Stock
	 	 	23	 
	8.11 Compliance with Applicable Laws
	 	 	23	 
	8.12 Stock Certificates; Book Entry
	 	 	23	 
	8.13 No Implied Rights to Employees
	 	 	24	 
	8.14 Necessity for Delay
	 	 	24	 
	8.15 Use of Proceeds
	 	 	24	 
	8.16 No Obligation to Exercise
	 	 	24	 
	8.17 Assignment by Company; Third Party Beneficiaries
	 	 	24	 
	8.18 Effective Date
	 	 	25	 
	8.19 Term of the Plan
	 	 	25	 
	8.20 409A Compliance
	 	 	25	 







 









 








Amended and Restated

Chico’s FAS, Inc.

2002 Omnibus Stock and Incentive Plan

(Effective June 26, 2008)




ARTICLE 1




ESTABLISHMENT; PURPOSE; AWARDS





     1.1 Establishment; Purpose. Chico’s FAS, Inc. (the “Company”) hereby amends and
restates the Company’s 2002 Omnibus Stock and Incentive Plan, as approved on June 26, 2008
(the “Plan”). The purpose of the Plan is to (i) attract and retain Participants as long-term
employees or directors; (ii) motivate Participants, by means of appropriate incentives, to
achieve long-range goals; (iii) provide incentive compensation opportunities that are
competitive with those of other similar companies; and (iv) further identify Participants’
interests with those of the Company’s other stockholders through compensation based on the
Company’s common stock; and, as a result of the foregoing, promote the long-term financial
interest of the Company and its stockholders.




     1.2 Types of Awards Under Plan. Under the Plan, the Company may grant Incentive
Stock Options, Non-Qualified Stock Options, Restricted Stock, Stock Appreciation Rights,
Performance Awards, and Restricted Stock Units.



ARTICLE 2




DEFINITIONS




     The following words and terms as used herein shall have that meaning set forth in this Article
2, unless a different meaning is clearly required by the context. Whenever appropriate, words used
in the singular shall be deemed to include the plural and vice versa, and the masculine gender
shall be deemed to include the feminine gender.




     2.1 “Award(s)” shall mean any award or benefit granted or awarded under the Plan,
including, without limitation, Options, Restricted Stock, Stock Appreciation Rights,
Performance Awards, and Restricted Stock Units.




     2.2 “Award Agreement(s)” shall mean any document, agreement or certificate deemed
by the Committee as necessary or advisable to be entered into with or delivered to a
Participant in connection with or as a condition precedent to the valid completion of the
grant of an Award under the Plan. Award Agreements include Stock Option Agreements, Stock
Appreciation Right Agreements, Performance Award Agreements, and Restriction Agreements.



1









 






     2.3 “Board” or “Board of Directors” shall mean the Board of Directors of
the Company.




     2.4 “Change in Control” shall mean:




	 	(a)	 	a change in control of the Company of a nature that is required, pursuant to
the Exchange Act to be reported in response to Item 1(a) of a Current Report on Form
8-K or Item 6(e) of Schedule 14A, in each case, as such requirements are in effect on
January 1, 2008;
	 
	 	(b)	 	the adoption by the Company of a plan of dissolution or liquidation;
	 
	 	(c)	 	the closing of a sale of all or substantially all of the assets of the Company;
	 
	 	(d)	 	the closing of a merger, reorganization or similar transaction (a
“Transaction”) involving the Company in which the Company is not the surviving
corporation or, if the Company is the surviving corporation, immediately following the
closing of the Transaction, persons who were stockholders of the Company immediately
prior to the Transaction own less than 65% of the combined voting power of the
surviving corporation’s voting securities; or
	 
	 	(e)	 	the acquisition of “Beneficial Ownership” (as defined in Rule 13d-3 under the
Exchange Act as in effect on January 1, 2008) of the Company’s securities comprising
35% or more of the combined voting power of the Company’s outstanding securities by any
“person” (as that term is used in Sections 13(d) and 14(d)(2) of the Exchange Act and
the rules and regulations promulgated thereunder, but not including any trustee or
fiduciary acting in that capacity for an employee benefit plan sponsored by the
Company) and such person’s “affiliates” and “associates” (as those terms are defined
under the Exchange Act).





     Notwithstanding any provision above to the contrary, no Change in Control shall be deemed to
have occurred with respect to any particular Participant by virtue of a transaction, or series of
transactions, that results in the Participant, or a group of persons including the Participant,
acquiring the Beneficial Ownership of more than 35% of the combined voting power of the Company’s
outstanding securities.




     2.5 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder. Reference to a specific section of the Code
shall include a reference to any successor or replacement provision.




     2.6 “Committee” shall mean the Compensation and Benefits Committee of the Board
of Directors, as defined in Article 5.



2









 






     2.7 “Common Stock” shall mean the common stock, par value $.01 per share of the
Company.




     2.8 “Company” shall mean Chico’s FAS, Inc. and its successors.




     2.9 “Employee” shall mean any employee of the Company or of a Subsidiary.
Directors who are employed by the Company or by a Subsidiary shall be considered Employees
under the Plan.




     2.10 “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute.




     2.11 “Fair Market Value” of a share of Common Stock means, as of any date, the
value of a share of the Common Stock determined as follows:




	 	(a)	 	if the Common Stock is publicly traded and is then listed on a national
securities exchange, its closing price on the date of determination on the principal
national securities exchange on which the Common Stock is listed or admitted to trading
as reported in The Wall Street Journal or such other source as the Committee deems
reliable;
	 
	 	(b)	 	if the Common Stock is publicly traded but is not listed or admitted to trading
on a national securities exchange, the average of the closing bid and asked prices on
the date of determination as reported in The Wall Street Journal or such other source
as the Committee deems reliable; or
	 
	 	(c)	 	if none of the foregoing is applicable, by the Committee in good faith.






     2.12 “Incentive Stock Option” or “ISO” shall mean an Option that is
intended to qualify as an “incentive stock option” under Section 422 of the Code.




     2.13 “Insider” shall mean an individual who is, on the relevant date, subject to
the reporting requirements of Section 16(a) of the Exchange Act.




     2.14 “Non-Employee Director” shall mean (a) a member of the Board of Directors
who is not an Employee or (b) a member of the board of directors (or comparable governing
body) of a Subsidiary who is not an Employee.




     2.15 “Non-Qualified Stock Option” or “NSO” shall mean an Option that is
not intended to qualify as an “incentive stock option” under Section 422 of the Code.




     2.16 “Option” shall mean an Incentive Stock Option or a Non-Qualified Stock
Option granted in accordance with the provisions of Article 6.




     2.17 “Option or SAR Period” is defined in Section 6.6.



3









 






     2.18 “Participant” shall mean any Employee or any Non-Employee Director to whom
an Award is granted under the Plan or who holds an outstanding Award.




     2.19 “Performance Award ” shall mean a right to receive, in cash or Common Stock
(as determined by the Committee in accordance with the provisions of Article 7), an award
which is contingent on the achievement of one or more performance goals.




     2.20 “Performance Award Agreement” is defined in Section 7.4.




     2.21 “Performance-Based Exception” shall mean the performance-based exception
from the tax deductibility limitation imposed by Section 162(m) of the Code, as set forth in
Section 162(m)(4)(C) of the Code.




     2.22 “Plan” shall mean the Amended and Restated Chico’s FAS, Inc. 2002 Omnibus
Stock and Incentive Plan, as set forth herein and as further amended from time to time.




     2.23 “Plan Administrator” shall mean the Company’s Vice President — Human
Resources, or such other person designated by the Committee to act as Plan Administrator.




     2.24 “Restricted Stock” shall mean shares of Common Stock subject to the
provisions of Article 7 and granted in an Award in accordance with the provisions of Article
7.




     2.25 “Restricted Stock Units” shall mean the right to receive shares of Common
Stock or the cash equivalent thereof subject to the provisions of Article 7 granted as an
Award in accordance with the provisions of Article 7.




     2.26 “Restriction Agreement” is defined in Section 7.2.




     2.27 “Restriction Period” is defined in Section 7.1.




     2.28 “Securities Exchange Act of 1934” shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder, or any successor or
replacement statute or regulation of similar import.




     2.29 “Stock Appreciation Right ” or “SAR” shall mean a right to receive upon
exercise of the SAR, in cash or Common Stock (as determined in accordance with the provisions
of Article 6), value equal to (or otherwise based on) the excess of (a) the Fair Market Value
of a specified number of shares of Common Stock at the time of exercise, over (b) the SAR
Price established by the Committee.




     2.30 “Stock Appreciation Right Agreement” is defined in Section 6.1.



4









 






     2.31 “Stock Option Agreement” is defined in Section 6.1.




     2.32 “Subsidiary” shall mean any corporation that at the time qualifies as a
subsidiary of the Company under the definition of “subsidiary corporation” contained in
Section 424(f) of the Code.




     2.33 “Substitute Awards” shall mean Awards granted or shares of Common Stock
issued by the Company upon assumption of, or in substitution or exchange for, awards
previously granted, or the right or obligation to make future awards, in each case by a
company acquired by the Company or any subsidiary or with which the Company or any Subsidiary
combines.



ARTICLE 3




ELIGIBLE PERSONS





     3.1 Eligibility. All Employees and Non-Employee Directors are eligible to
participate in the Plan. The Company may grant an Award to any Employee who is in the employ
of the Company or any Subsidiary on the date of a grant of such Award. The Company may grant
an Award (other than an Incentive Stock Option) to any person who is a Non-Employee Director
on the date of a grant of such Award.




     3.2 Selection of Participants.




	 	(a)	 	Subject to the provisions of the Plan, the Committee may, from time to time,
select from all Employees those to whom Awards shall be granted and shall determine the
nature and size of each Award.
	 
	 	(b)	 	The Board of Directors shall determine the discretionary Awards to be granted
to the Non-Employee Directors in accordance with the Company’s compensation program for
Non-Employee Directors, as such program may be determined from time to time.






     3.3 General Effect of Award. Each Participant to whom the Committee or the Board
of Directors has granted an Award shall be bound by the terms of the Plan and the Award
Agreement applicable to him or her.



5









 





ARTICLE 4




SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS





     4.1 Sources of Shares Available for Grants and Limits on Shares Subject to the
Plan. The Common Stock for which Awards are granted under the Plan shall be subject to
the following conditions and limitations:




	 	(a)	 	The shares of Common Stock with respect to which Awards are made under the Plan
shall be shares currently authorized but unissued or currently held or subsequently
acquired by the Company as treasury shares, including shares purchased in the open
market or in private transactions for use under the Plan.
	 
	 	(b)	 	The maximum aggregate number of shares of Common Stock that may be delivered to
Participants and their beneficiaries under the Plan shall be equal to the sum of: (i)
ten million (10,000,000) shares of Common Stock, plus (a) that number of shares
remaining available for future awards under this Plan immediately prior to the
Effective Date and (b) that number of shares represented by awards granted under the
Plan prior to the Effective Date which remain outstanding as of the Effective Date;
(ii) any shares of Common Stock available for future awards under any prior option plan
of the Company (the “Prior Plans”) as of the Effective Date (including without
limitation the 1992 Stock Option Plan, the 1993 Stock Option Plan, and the Non-Employee
Directors’ Stock Option Plan); and (iii) any shares of Common Stock that are
represented by awards granted under any Prior Plans which are forfeited, expire or are
canceled without delivery of shares of Common Stock.
	 
	 	(c)	 	To the extent provided by the Committee (or by the Board with respect to any
Awards granted to Non-Employee Directors), any Award may be settled in cash rather than
Common Stock. To the extent any shares of Common Stock covered by an Award are not
delivered to a Participant or beneficiary because the Award is forfeited or canceled,
or the shares of Common Stock are not delivered because the Award is settled in cash or
used to satisfy the applicable tax withholding obligation, such shares shall not be
deemed to have been delivered for purposes of determining the maximum number of shares
of Common Stock available for delivery under the Plan.
	 
	 	(d)	 	If the exercise price of any Option granted under the Plan or any Prior Plan is
satisfied by tendering shares of Common Stock to the Company (by either actual delivery
or by attestation), only the number of shares of Common Stock issued net of the shares
of Common Stock tendered shall be deemed delivered for purposes of determining the
maximum number of shares of Common Stock available for delivery under the Plan. Only
the net shares, if any, issued in payment upon the exercise of a Stock
Appreciation Right shall be deemed delivered for purposes of determining the maximum
number of shares of Common Stock available for delivery under the Plan.




6









 






	 	(e)	 	Substitute Awards shall not reduce the shares of Common Stock authorized for
grant under the Plan or authorized for grant to a Participant in any calendar year.
Additionally, in the event that a company acquired by the Company or any Subsidiary or
with which the Company or any Subsidiary combines has shares available under a
pre-existing plan approved by shareholders and not adopted in contemplation of such
acquisition or combination, the shares available for grant pursuant to the terms of
such pre-existing plan (as adjusted, to the extent appropriate, using the exchange
ratio or other adjustment or valuation ratio or formula used in such acquisition or
combination to determine the consideration payable to the holders of common stock of
the entities party to such acquisition or combination) may be used for Awards under the
Plan and shall not reduce the shares of Common Stock authorized for grant under the
Plan; provided that Awards using such available shares shall not be made after the date
awards or grants could have been made under the terms of the pre-existing plan, absent
the acquisition or combination, and shall only be made to individuals who were not
Employees or Directors prior to such acquisition or combination.






     4.2 Maximum Awards. Subject to Section 4.3, the following additional limitations
on the maximum numbers of shares of Common Stock in the case of certain Awards are imposed
under the Plan:




	 	(a)	 	The maximum number of shares of Common Stock that may be covered by Awards of
Stock Options or Stock Appreciation Rights granted to any one individual shall be two
hundred fifty thousand (250,000) shares (effective February 4, 2005, one million
(1,000,000) shares as a result of the most recent two-for-one stock split) during any
one calendar-year period.
	 
	 	(b)	 	For Performance Awards denominated in shares of Common Stock, Restricted Stock
and Restricted Stock Units that are intended to be “performance-based compensation” (as
that term is used for purposes of Section 162(m) of the Code), no more than one hundred
thousand (100,000) shares (effective February 4, 2005, four hundred thousand (400,000) shares as a result of the most recent two-for-one stock split) of Common Stock may be
subject to such Awards granted to any one individual during any one-calendar-year
period. If, after shares have been earned, the delivery is deferred, any additional shares attributable to dividends during the deferral period shall be disregarded.
	 
	 	(c)	 	With respect to Performance Awards denominated in cash that are intended to be
“performance-based compensation” (as that term is used
for purposes of Section 162(m) of the Code), the maximum dollar value payable to any
one individual during any one-calendar-year period is $5 million.




7









 












     4.3 Adjustments to Limitations. The number of shares and the limitations on the
number of shares set forth in each of the foregoing provisions of this Article 4 shall be
subject to adjustment as provided in Section 8.1.



ARTICLE 5




ADMINISTRATION





     5.1 General. Except as otherwise determined by the Board of Directors in its
discretion or as otherwise expressly provided for in this Article 5, the Plan shall be
administered by the Committee, or if no Committee is appointed and serving as provided herein,
by the full Board of Directors. The Committee shall consist of not less than two (2) nor more
than five (5) persons, each of whom shall be a member of the Board and a “disinterested
person” (as such term is defined in Rule 16b-3 under the Securities Exchange Act of 1934) and
who also qualify both as outside directors within the meaning of Section 162(m) of the Code
and the related regulations and as “independent” as set forth under the applicable stock
exchange requirements. The Board of Directors may from time to time remove members from, or
add members to, the Committee. Vacancies on the Committee, howsoever caused, shall be filled
by the Board of Directors.




     5.2 Power and Authority. Subject to the express provisions of the Plan, the
Committee shall have complete authority, in its discretion:




	 	(a)	 	to interpret the Plan and the Awards granted hereunder, and to prescribe, amend
and rescind rules and regulations relating to the Plan and the Awards granted
hereunder;
	 
	 	(b)	 	to determine the terms and provisions of Awards granted hereunder and to make
such determinations as to the Participants to receive Awards, the form, amount and
timing of such Awards, the terms and provisions of such Awards, and the Award
Agreements evidencing the same, which need not be uniform and which the Committee may
make selectively among Participants who receive, or who are to receive, Awards under
the Plan, whether or not the Participants are similarly situated;
	 
	 	(c)	 	to determine to whom Options and Stock Appreciation Rights shall be granted,
the times and the prices at which Options and Stock Appreciation Rights are granted,
the Option and Stock Appreciation Right periods, the number of shares of Common Stock
to be subject to each Option and Stock Appreciation Right, whether each Option shall be
an Incentive Stock Option or a Non-Qualified Stock Option, and to determine the terms
and provisions of each Option and Stock Appreciation Right (which need not be
identical);




8









 






	 	(d)	 	to determine to whom Performance Awards shall be granted, the number of shares
related to each, the terms and provisions (which need not be identical) of Performance
Awards and whether the Participant has met the goals associated with each;
	 
	 	(e)	 	to determine to whom Restricted Stock and Restricted Stock Units shall be
granted, the Restriction Period, the number of shares of Restricted Stock, the terms
and provisions (which need not be identical) of awards of Restricted Stock and
Restricted Stock Units and whether the Participant has met the goals on or before the
close of the Restriction Period;
	 
	 	(f)	 	to impose such limitations with respect to Awards and shares issued pursuant to
Awards, including without limitation, any relating to the application of federal or
state securities laws, as the Committee may deem necessary or desirable;
	 
	 	(g)	 	to condition the granting of any Award upon a Participant’s entering into a
confidentiality, noncompetition, nonsolicitation, nonacceptance, and/or “lock-up”
agreement, including without limitation, a confidentiality, noncompetition,
nonsolicitation, nonacceptance, and/or “lock-up” agreement included as part of the
Award Agreement;
	 
	 	(h)	 	to determine the dates of employment or service of any Participant, and the
reasons for termination of any Participant;
	 
	 	(i)	 	to determine whether any leave of absence constitutes a termination of
employment or service for purposes of the Plan and Awards made pursuant to the Plan and
the impact, if any, of such leave of absence on awards theretofore made under the Plan;
	 
	 	(j)	 	to determine when a person’s change of status with respect to the Company
constitutes a termination of such person’s employment or service for purposes of the
Plan and Awards made pursuant to the Plan;
	 
	 	(k)	 	to make such determinations as it deems equitable with respect to the impact,
if any, of leaves of absence from the Company upon Awards hereunder;
	 
	 	(l)	 	to grant dividend equivalents upon Awards (other than Restricted Stock for
which Participants are entitled to receive dividends and other distributions paid with
respect to shares of Common Stock so held), provided such grants shall only be made
upon such terms and conditions as will satisfy the requirements under Section 409A of
the Code and provided further, that any such dividend equivalents shall be subject to
the terms and conditions imposed by the Committee;




9









 






	 	(m)	 	to amend the terms and conditions of any Award Agreement after the grant of the
Award to which such Award Agreement relates, subject to the
terms and conditions of the Plan, in a manner that is not adverse to the rights of
the Participant receiving such Award as set forth in the Award Agreement or under
the Plan; and
	 
	 	(n)	 	to make all other determinations necessary or advisable for the administration
of the Plan and Awards.





     With respect to the Non-Employee Directors, the authority conferred by this Section 5.2 shall
rest with the Board of Directors and not the Committee.




     5.3 Other Factors; Determinations Final. In making determinations under this
Article 5, the Committee or the Board, as the case may be, may take into account the nature of
the services rendered by the respective Participant, their present and potential contributions
to the success of the Company and such other factors as the Committee or the Board, in its
discretion, deems relevant. The Committee’s determination and the Board’s determination on
all of the matters referred to in this Article 5 shall be final, conclusive and binding on all
persons.




     5.4 Quorum; Actions. The Committee shall select one of its members as chairman,
and shall hold meetings at such times and places as it may determine. The acts of a majority
of the Committee in meetings at which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall be valid acts of the Committee.




     5.5 Delegation. Except to the extent prohibited by applicable law or the
applicable rules of a stock exchange, the Committee and the Board shall have the authority to
delegate administrative duties, including the authority to respond to and decide claims or
appeals under the Plan and to interpret the Plan terms, to one or more of its members, to the
Plan Administrator or to any other person or persons selected by it. Notwithstanding the
foregoing, neither the Committee or the Board may delegate its authority with respect to (a)
non-ministerial actions with respect to Insiders; (b) non-ministerial actions with respect to
Awards that are intended to qualify for the Performance-Based Exception; and (c) certifying
that any performance goals and other material terms attributable to Awards intended to qualify
for the Performance-Based Exception have been satisfied. Any such allocation or delegation
may be revoked by the Committee or the Board, as the case may be, at any time.




     5.6 No Liability; Indemnification. No member of the Committee or the Board shall
be liable for any action or determination made in good faith with respect to the Plan. To the
fullest extent permitted by law, each person who is or shall have been a member of the
Committee or the Board shall be indemnified and held harmless by the Company against and from
any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him
or her in connection with or resulting from any claim, action, suit, or proceeding to which he
or she may be a party or in which he or she may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all



10









 







amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by
him or her in satisfaction of any judgment in any such action, suit, or proceeding against him
or her, provided that the person shall give the Company an opportunity, at its own expense, to
handle and defend the same before the person undertakes to handle and defend it on his or her
own behalf. The foregoing right of indemnification shall not be exclusive of any other rights
of indemnification to which such persons may be entitled under the Company’s Articles of
Incorporation or Bylaws, by contract or under a policy of insurance, as a matter of law, or
otherwise, or any power that the Company may have to indemnify them or hold them harmless.



ARTICLE 6




STOCK OPTIONS AND STOCK APPRECIATION RIGHTS





     6.1 General Method of Grant. Each Option or Stock Appreciation Right granted
under the Plan to Employees shall be authorized by the Committee and each Option or Stock
Appreciation Right granted under the Plan to Non-Employee Directors shall be authorized by the
Board. Each Option or Stock Appreciation Right shall be evidenced by a written agreement or
option certificate (or as applicable, Stock Appreciation Right certificate) in such form as
the Committee or the Board, as the case may be, from time to time shall approve or authorize
(with respect to Options, the “Stock Option Agreement,” with respect to Stock Appreciation
Rights, the “Stock Appreciation Right Agreement”), which shall be executed by the Company and
by the Participant, and shall be subject to the terms and conditions of this Article 6.




     6.2 Number of Shares. The number of shares of Common Stock covered by an Option
or SAR granted to an Employee shall be established in each case by the Committee on or as of
the date of grant. The number of shares of Common Stock covered by an Option or SAR granted
to a Non-Employee Director shall be established in each case by the Board on or as of the date
of grant.




     6.3 Option or SAR Price.




	 	(a)	 	The price at which shares of Common Stock covered by each Option granted to an
Employee may be purchased pursuant thereto shall be established or determined by a
method established in each case by the Committee on or as of the date of grant and such
price or method shall be stated in the Stock Option Agreement; provided, however, that,
other than in connection with Substitute Awards, the purchase price shall be an amount
not less than the Fair Market Value of the shares of Common Stock on the date the
Option is granted.




11









 






	 	(b)	 	With respect to Options granted to a Non-Employee Director, the price at which shares of Common Stock covered by each such Option may be
purchased pursuant thereto shall be established or determined by a method
established in each case by the Board on or as of the date of grant and such price
or method shall be stated in the Stock Option Agreement; provided, however, that the
purchase price shall be an amount not less than the Fair Market Value of a share of
Common Stock on the date of grant.
	 
	 	(c)	 	With respect to SARs, the SAR Price upon which the SAR value is determined at
the time of exercise shall be established or determined by a method established in each
case by the Committee or Board, as applicable, on or as of the date of grant and such
SAR Price or method shall be stated in the Stock Appreciation Right Agreement;
provided, however, that, other than in connection with Substitute Awards, the SAR Price
shall be an amount not less than the Fair Market Value of a share of Common Stock on
the date of grant.






     6.4 Date of Grant. The date on which or as of which the Committee or the Board,
as the case may be, approves the grant of an Option or SAR and all corporate action has been
taken which creates a legally binding right to the grant of the Option or SAR shall be
considered to be the respective “date of grant” for all purposes under the Plan.




     6.5 Method of Payment. The purchase price of the shares of Common Stock which
may be purchased pursuant to each Option shall be subject to the following:




	 	(a)	 	Subject to the other provisions of this Section 6.5, the full price for shares
of Common Stock purchased upon exercise of any Option shall be paid at the time of
exercise (except that, in the case of an exercise arrangement approved by the Committee
or the Board, as the case may be, and described in Section 6.5(c), payment may be made
as soon as practicable after the exercise).
	 
	 	(b)	 	The Option price shall be payable (A) in United States dollars in cash or by
check, bank draft or money order payable to the order of the Company, (B) by the
delivery of shares of Common Stock already owned by the Participant, in a manner
acceptable to the Committee or the Board, as the case may be; (C) by withholding shares
of Common Stock otherwise issuable in connection with the exercise of the Option; (D)
by any other legally permissible means acceptable to the Committee or the Board, as the
case may be, specified in the Stock Option Agreement; or (E) at the discretion of the
Committee or the Board, as the case may be, through a combination of some or all of the
preceding payment methods provided such combination is specified in the Stock Option
Agreement. Shares of Common Stock delivered as payment will be valued at their Fair
Market Value on the day of delivery for the purpose of determining the extent to which
the Option purchase price has been paid thereby, or as otherwise
determined by the Committee or the Board, as the case may be, in its respective
discretion pursuant to any reasonable method contemplated by Section 422 of the
Code.




12









 






	 	(c)	 	To the extent permitted by applicable law and regulations, the Committee or the
Board, as the case may be, may permit a Participant to elect to pay the Option purchase
price upon the exercise of an Option by irrevocably authorizing a third party to sell shares of Common Stock (or a sufficient portion of the shares) acquired upon exercise
of the Option and remit to the Company a sufficient portion of the sale proceeds to pay
the entire purchase price and any tax withholding resulting from such exercise and
sale.






     6.6 Option or SAR Exercise Period.




	 	(a)	 	Each Stock Option Agreement or Stock Appreciation Right Agreement with respect
to any Option or, as applicable, SAR, shall provide that the Option or SAR may be
exercised by the Participant in such portions and at such times as may be specified in
such Stock Option Agreement or Stock Appreciation Right Agreement, subject to an Option
or SAR Period ending not later than ten (10) years after the date of grant; provided,
however, that the Option or SAR Period shall end on the date specified in such Stock
Option Agreement or Stock Appreciation Right Agreement or, with respect to any Option
or SAR granted to an Employee, if earlier, the ending date of the period specified in
the next sentence. An Option or SAR granted to an Employee may be exercised only
during the Option or SAR Period and only during the continuance of the Participant’s
employment with the Company or a Subsidiary; provided, the Committee or the Board, as
applicable, and in its discretion, may permit a Participant to exercise an Option or
SAR post-termination of employment at such time and in such manner as is set forth in
the Participant’s Stock Option Agreement or Stock Appreciation Right Agreement.






     6.7 Certain Interpretations.




	 	(a)	 	Whether an authorized leave of absence or absence for military or governmental
service shall constitute termination of employment for purposes of the Plan shall be
determined by the Committee, whose determination shall be final, conclusive and binding
on all persons. Transfers of employment between the Company and any of its
Subsidiaries shall not be considered to be a termination of employment for the purposes
of the Plan.




13









 






	 	(b)	 	In the event of the death of a Participant, Options or SARs held by the
Participant may be exercised, to the extent permitted in the Stock Option Agreement or
Stock Appreciation Right Agreement and in Section 6.6, by
the person or persons entitled to do so under the Participant’s will, or, if the
Participant fails to make testamentary disposition of said Options or SAR or dies
intestate, by the Participant’s legal representative or representatives.






     6.8 Exercise and Vesting of Options and SARs.




	 	(a)	 	Unless otherwise specified by the Committee or the Board, as the case may be,
and reflected in the Stock Option Agreement or Stock Appreciation Right Agreement, the
right to exercise each Option or SAR shall accrue in accordance with the following
vesting schedule:





	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Shares	 
	 	Time After	 	 	Vested and	 
	 	Date of Grant	 	 	Exercisable	 
	 	Less than 1 year

	 	 	 	0	%	 
	 	1 year but less than 2 years

	 	 	 	33 1/3	%	 
	 	2 years but less than 3 years

	 	 	 	66 2/3	%	 
	 	3 years or more

	 	 	 	100	%	 
	 






	 	(b)	 	Notwithstanding the foregoing, a Participant shall be 100% vested in the number
of shares of Common Stock originally covered by an Option or SAR in the event
Participant dies or becomes totally and permanently disabled (as determined in the sole
discretion of the Committee) while still employed by the Company or upon a Change in
Control, provided upon such Change in Control, vesting will occur only if either (1)
the successor company does not assume, convert, continue or otherwise replace the
Option or SAR on proportionate and equitable terms or (2) the Participant is terminated
without cause within twelve (12) months following the Change in Control. When it deems
other special circumstances to exist, the Committee or the Board, as the case may be,
in its discretion may accelerate the time at which an Option or SAR may be exercised or
may modify the terms of the Option or SAR to provide for other special circumstances
under which the right to exercise the Option or SAR would be accelerated if, under
previously established exercise terms, such Option or SAR was not immediately
exercisable in full, even if the acceleration would permit the Option or SAR to be
exercised more rapidly than the vesting set forth above in the vesting schedule set
forth above or in the Stock Option Agreement or Stock Appreciation Right Agreement, or
as otherwise specified by the Committee or the Board, would permit.




14









 












     6.9 Multiple Grants in Single Agreement. In the discretion of the Committee, a
single Stock Option Agreement may include both Incentive Stock Options and Non-Qualified Stock
Options, or separate Stock Option Agreements may be set forth for Incentive Stock Options and
Non-Qualified Stock Options.




     6.10 Minimum Exercise. Notwithstanding anything contained herein to the
contrary, if an Option or SAR covers 100 or more shares of Common Stock, then the Participant
may exercise such Option or SAR only with respect to at least 100 shares at any one time, and
if any Option or SAR covers fewer than 100 shares, then the Participant must exercise such
Option or SAR for all shares covered by the Option or SAR at one time.




     6.11 Other Provisions. The Stock Option Agreements and Stock Appreciation Right
Agreements under the Plan may contain such other terms, provisions and conditions not
inconsistent with the Plan as shall be determined by the Committee or the Board, as the case
may be, in its discretion, including, without limitation, provisions: (i) relating to the
vesting and termination of Options or SARs; (ii) relating to exercisability of Options or
SARs, including without limitation immediate exercisability and separate vesting of the rights
to shares of Common Stock acquired upon exercise; (iii) restricting the transferability of
such shares during a specified period; and (iv) requiring the resale of such shares to the
Company, at a price as specified in the Stock Option Agreement or Stock Appreciation Right
Agreement, if the Participant’s employment by the Company terminates prior to a time specified
in the Stock Option Agreement or Stock Appreciation Right Agreement.




     6.12 Special Provisions for Incentive Stock Options. Each Option that is
intended to qualify as an Incentive Stock Option pursuant to Section 422 of the Code, and each
Option that is intended to qualify as another type of incentive stock option that may
subsequently be authorized by law, shall comply with the applicable provisions of the Code
pertaining to such options. Accordingly, the provisions of the Plan with respect to Incentive
Stock Options shall be construed in a manner consistent with such requirements, and no person
shall be eligible to receive any Incentive Stock Options under the Plan if such person would
not be able to qualify for the benefits of incentive stock options under Section 422 of the Code.
Without limitation on the foregoing, and notwithstanding the foregoing provisions of this
Section 6.12, if any Incentive Stock Option is granted to any person at a time when such
person owns, within the meaning of Section 424(d) of the Code, more than ten percent (10%) of
the total combined voting power of all classes of stock of the employer corporation (or a
parent or subsidiary of such corporation within the meaning of Section 424 of the Code), the
price at which each share of Common Stock covered by such Option may be purchased pursuant to
such Option shall not be less than one hundred ten percent (110%) of the Fair Market Value of
the shares of Common Stock at the time the Option is granted, and such Option must be
exercised in no event later than the fifth anniversary of the date on which the Option was
granted. Moreover, as long as and to the extent required by the Code, the aggregate Fair
Market Value (determined as of the time
an Incentive Stock Option is granted) of the shares of Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by any Participant in any calendar
year under the Plan and under all other incentive stock option plans of the Company and any
parent and subsidiary corporations of the Company (as those terms are defined in Section 424
of the Code) shall not exceed $100,000.



15









 





ARTICLE 7




PERFORMANCE AWARDS, RESTRICTED STOCK

AND RESTRICTED STOCK UNITS





     7.1 Awards of Performance Awards, Restricted Stock or Restricted Stock Units;
Restriction Period.




	 	(a)	 	At the time of an Award of a Performance Award, Restricted Stock or Restricted
Stock Units, there shall be established for each Participant a restriction period (the
“Restriction Period”), which shall lapse (i) upon the completion of a period of time
(“Time Goal”) as shall be determined by the Committee or the Board, as the case may be,
(ii) upon the achievement of stock price goals within certain time periods (“Price/Time
Goal”) as shall be determined by the Committee or the Board, as the case may be, or
(iii) upon achievement of performance or other objectives (“Performance Goal”) as shall
be determined by the Committee or the Board, as the case may be.
	 
	 	(b)	 	Notwithstanding the foregoing provisions of Section 7.1(a) and except as
otherwise provided in Section 8.3, with respect to any Award of Restricted Stock or
Restricted Stock Units which is to be subject to a Time Goal, such Time Goal
established by the Committee or the Board, as the case may be, at the time of grant
shall not provide for a lapse of the applicable restrictions more rapidly than would be
permitted by the following schedule:





	 	 	 	 	 	 	 	 
	 
	 	Time After	 	 	Shares as to Which	 
	 	Date of Grant	 	 	Restriction Lapses	 
	 	Less than 1 year
	 	 	 	0	%	 
	 	1 year but less than 2 years
	 	 	 	33 1/3	%	 
	 	2 years but less than 3 years
	 	 	 	66 2/3	%	 
	 	3 years or more
	 	 	 	100	%	 
	 





16









 






     7.2 Restricted Stock. The Committee or the Board, as the case may be, may award
to any Participant shares of Common Stock, subject to this Article 7 and such other terms and
conditions as the Committee or the Board may prescribe (“Restricted Stock”). Each certificate
for Restricted Stock shall be registered in the name of the Participant and deposited by the
Participant, together with a stock power endorsed in blank, with the Plan Administrator.
Restricted Stock awarded under the Plan shall be evidenced by a signed written agreement
containing such terms and conditions as the Committee or the Board, as the case may be, may
from time to time determine in its discretion (the “Restriction Agreement”). Restricted Stock
may not be sold, assigned, transferred, pledged or otherwise encumbered, except as hereinafter
provided, during the Restriction Period. Except for such restrictions on transfer, the
Participant as owner of such Restricted Stock shall have all the rights of a holder of such
Common Stock. If provided in the Restriction Agreement approved by the Committee at the time
of grant, a Participant may transfer Restricted Stock to a trust, provided that the Committee
or the Board, as the case may be, may require that the Participant submit an opinion of his or
her legal counsel, satisfactory to the Committee or the Board, as the case may be, that such
holding has no adverse tax or securities law consequences for the Company. With respect to
Restricted Stock that is issued subject to a Time Goal, a Price/Time Goal or a Performance
Goal, the Plan Administrator shall redeliver to the Participant (or the Participant’s legal
representative or designated beneficiary) the certificates deposited pursuant to this
subsection (b) at the expiration of the Restriction Period. Notwithstanding the foregoing, if
Restricted Stock is issued subject to a Time Goal, a Price/Time Goal or Performance Goal and
the Committee or the Board, as the case may be, determines that a Participant has not achieved
the Time Goal, the Price/Time Goal or the Performance Goal before the end of the Restriction
Period, the Participant shall have no further rights with respect to the Restricted Stock, all
such shares shall be forfeited and the Committee shall have the right to complete a blank
stock power in order to return such shares to the Company.




     7.3 Restricted Stock Units. The Committee or the Board, as the case may be, may
award to a Participant a right to receive Common Stock or the cash equivalent of the Fair
Market Value of the Common Stock, in the Committee’s or the Board’s discretion, at the end of
the Restriction Period (“Restricted Stock Units”) subject to achievement of a Time Goal, a
Price/Time Goal or a Performance Goal established by the Committee or the Board, as the case
may be. Restricted Stock Units awarded under the Plan shall be evidenced by a signed written
agreement containing such terms and conditions as the Committee or the Board, as the case may
be, may from time to time determine in its discretion (the “Restriction Agreement”). With
respect to Restricted Stock Units that are subject to a Time Goal, a Price/Time Goal or a
Performance Goal, the Plan Administrator shall deliver notice to the Participant (or the
Participant’s legal representative or designated beneficiary) at the end of the Restriction
Period as to whether the Participant has achieved the Time Goal, the Price/Time Goal or the
Performance Goal, as the case may be. If the Committee or the Board, as the case may be,
determines that a Participant has not achieved the Time Goal, the Price/Time Goal
or the Performance Goal, as the case may be, before the end of the Restriction Period,
the Participant shall have no further rights with respect to the Restricted Stock Units.



17









 






     7.4 Performance Awards. The Committee or the Board, as the case may be, may award
to a Participant a right to receive Common Stock or a certain cash amount, in the Committee’s
or the Board’s discretion, at the end of the Restriction Period (“Performance Awards”) subject
to achievement of one or more Performance Goals established by the Committee or the Board, as
the case may be. Performance Awards awarded under the Plan shall be evidenced by a signed
written agreement containing such terms and conditions as the Committee or the Board, as the
case may be, may from time to time determine in its discretion (the “Performance Award
Agreement”). The Plan Administrator shall deliver notice to the Participant (or the
Participant’s legal representative or designated beneficiary) at the end of the Restriction
Period as to whether the Participant has achieved the Performance Goal(s). If the Committee
or the Board, as the case may be, determines that a Participant has not achieved the
Performance Goal(s) before the end of the Restriction Period, the Participant shall have no
further rights with respect to the Performance Awards.




     7.5 Performance Based Compensation. The Committee may designate whether any
Performance Award, Restricted Stock and Restricted Stock Units being granted to any
Participant is intended to be “performance-based compensation” as that term is used in section
162(m) of the Code. Any such Performance Award, Restricted Stock or Restricted Stock Units
designated as intended to be “performance-based compensation” shall be conditioned on the
achievement of one or more performance measures, to the extent required by Section 162(m) of
the Code, and shall include at least a one (1) year performance period. The Performance
Measures that may be used by the Committee, or as applicable, the Board, for such Awards shall
be based on any one or more of the following, as selected by the Committee or Board, as
applicable: net sales; revenue; revenue growth or product revenue growth; operating income (before or after
taxes); pre- or after-tax income (before or after allocation of corporate overhead and bonus); net
earnings; earnings per share; net income (before or after taxes); return on equity; total
shareholder return; return on assets or net assets; appreciation in and/or maintenance of share
price; gross profits; earnings (including earnings before taxes, earnings before interest and taxes
or earnings before interest, taxes, depreciation and amortization); economic value-added models or
equivalent metrics; comparisons with various stock market indices; reductions in costs; cash flow
or cash flow per share (before or after dividends); return on capital (including return on total
capital or return on invested capital); cash flow return on investment; improvement in or
attainment of expense levels or working capital levels; operating margins, gross margins or cash
margin; year-end cash; debt reductions; shareholder equity; market share; regulatory achievements;
implementation, completion, or attainment of measurable objectives with respect to research,
development, products or projects and recruiting and maintaining personnel. The Performance Measures may be
expressed in terms of absolute growth, cumulative growth, percentage growth, a designated
absolute amount, percentage of sales, and per share value of Common Stock outstanding. In
addition, the Performance Measures may be based solely by reference to the Company’s
performance or the performance of a Subsidiary, division, business segment or business unit of
the Company, or based upon the Company’s performance relative to the performance of one or
more companies or an index covering multiple companies. The Committee may also exclude, if
provided in the Award Agreement, charges related to an event or occurrence which the Committee
determines should appropriately be excluded, including (a) restructurings, discontinued
operations, extraordinary items, and other unusual or non-recurring charges, (b) an event
either not directly related to the operations of the Company or not within the reasonable
control of the Company’s management, or (c) the cumulative effects of tax or accounting
changes in accordance with U.S. generally accepted accounting principles. For Performance
Awards, Restricted
Stock or Restricted Stock Units intended to be “performance-based compensation,” the
grant of the Performance Award, Restricted Stock or Restricted Stock Units, the
establishment of the performance measures and the certification as to whether such performance
goals have been satisfied shall be made in a manner and during the period required under
Section 162(m) of the Code.



18









 





ARTICLE 8




MISCELLANEOUS





     8.1 Adjustment of Number of Shares, Etc.




	 	(a)	 	Division/Combination of Shares. In the event of any increase or
decrease in the number of issued shares of Common Stock resulting from a stock split or
other division or consolidation of shares or the payment of a stock dividend (but only
on Common Stock) or any other increase or decrease in the number of shares of Common
Stock effected without any receipt of consideration by the Company, then, in any such
event, the number of shares of Common Stock that remain available under the Plan, the
number of shares covered by each outstanding Option or SAR, the exercise price per
share covered by each outstanding Option or SAR, the purchase price per share and the
number and any purchase price for any other Awards involving Common Stock (or
equivalents) granted but not yet issued, in each case, shall be proportionately and
appropriately adjusted for any such increase or decrease.
	 
	 	(b)	 	Change Affecting Shares of Common Stock. Subject to any required
action by the stockholders, if any change occurs in the Common Stock by reason of any
recapitalization, reorganization, merger, consolidation, split-up, combination or
exchange of shares, or of any similar change affecting Common Stock, then, in any such
event, the number and type of shares of Common Stock then covered by each outstanding
Option or SAR, the purchase price per share covered by each outstanding Option or SAR
and the purchase price per share and the number and any purchase price for any other
Awards involving Common Stock (or equivalents) granted but not yet issued, in each
case, shall be proportionately and appropriately adjusted for any such change.
	 
	 	(c)	 	Change in Par Value. In the event of a change in the Common Stock as
presently constituted that is limited to a change of all of its authorized shares with
par value into the same number of shares with a different par value or without par
value, the shares resulting from any change shall be deemed to be Common Stock within
the meaning of the Plan.




19









 






	 	(d)	 	Discretion Concerning Adjustments. To the extent that the foregoing
adjustments relate to stock or securities of the Company, such adjustments shall be
required to be made and, with respect to any Incentive Stock Option granted pursuant to
Article 6, such adjustment shall be done in a manner that causes such Option to
continue to qualify as an incentive stock option within the meaning of Section 422 of
the Code.
	 
	 	(e)	 	No Affect on Company’s Right to Adjust. The existence of the Plan, or
the grant of an Option or other Award under the Plan, shall not affect in any way the
right or power of the Company to make adjustments, reclassifications, reorganizations
or changes of its capital or business structure or to merge or to consolidate, or to
dissolve, to liquidate, to sell, or to transfer all or any part of its business or
assets.






     8.2 Transferability. Except as otherwise provided by the Committee or the Board,
as the case may be, Awards granted under the Plan shall be non-transferable, and its terms
shall state that it is non-transferable and that, during the lifetime of the Participant,
shall be exercisable only by the Participant; notwithstanding the foregoing, Awards shall be
transferable by will or the laws of descent and distribution.




     8.3 Change in Control. In the event of a Change in Control, any Award subject to
a Time Goal shall become fully vested without regard to any other terms of the Award but only
if either (a) the successor company does not assume, convert, continue, or otherwise replace
the Award on proportionate and equitable terms or (2) the Participant is terminated without
cause within twelve (12) months following the Change in Control.




     8.4 Beneficiary Designation. Each Participant under the Plan may name, from time
to time, any beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit (other than an Option) under the Plan is to be paid in case of his or her
death before the Participant receives any or all of such benefit. Each designation will be
effective only with the written consent of the Participant’s spouse and will revoke all prior
designations by that Participant, shall be in the form prescribed by the Plan Administrator,
and will be effective only when filed by the Participant in writing with the Plan
Administrator during his or her lifetime. In the absence of any such designation, benefits
(other than those under Options) that are vested and remain unpaid at the Participant’s death
shall be paid to his or her estate.




     8.5 Tax Withholding.




	 	(a)	 	Power to Withhold; Methods to Satisfy. The Company shall have the
power to withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy any federal, state or local withholding or other tax due from the
Company with respect to any amount payable and/or




20









 






	 	 	 	shares issuable under the Plan, and the Company may defer such payment or issuance
unless indemnified to its satisfaction. Whenever under the Plan payments are to be
made in cash, such payments shall be made net of an amount sufficient to satisfy any
federal, state or local withholding tax liability. The Committee or the Board, as
the case may be, in its discretion, and subject to such requirements as the
Committee or the Board may impose prior to the occurrence of such withholding, may
permit such withholding obligations to be satisfied through cash payment by the
Participant, through the surrender of shares of Common Stock which the Participant
already owns, or through the surrender of shares of Common Stock to which the
Participant is otherwise then entitled under the Plan, provided, only the minimum
amount required to satisfy statutory requirements shall be withheld.
	 
	 	(b)	 	Irrevocable Elections by Participants. Subject to the consent of the
Committee or the Board, as the case may be, with respect to (i) the exercise of a
Non-Qualified Stock Option, (ii) the lapse of restrictions on Restricted Stock, or
(iii) the issuance of any other stock Award under the Plan, a Participant may make an
irrevocable election (an “Election”) to (A) have shares of Common Stock otherwise
issuable under (i) withheld, or (B) tender back to the Company shares of Common Stock
received pursuant to (i), (ii) or (iii), or (C) deliver back to the Company pursuant
to (i), (ii), or (iii) previously acquired shares of Common Stock having a Fair Market
Value sufficient to satisfy all or part of the Participant’s estimated tax obligations
associated with the transaction, provided only the minimum amount required to satisfy
statutory requirements shall be withheld. Such Election must be made by a Participant
prior to the date on which the relevant tax obligation arises. The Committee or the
Board, as the case may be, may disapprove of any Election, may suspend or terminate the
right to make Elections, or may provide with respect to any Award under the Plan that
the right to make Elections shall not apply to such Awards.






     8.6 Gender and Number. Except where otherwise indicated by the context, words in
the masculine gender when used in the Plan will include the feminine gender, the singular
shall include the plural, and the plural shall include the singular.




     8.7 Choice of Law. All questions concerning the construction, validity and
interpretation of the Plan and all Awards made under the Plan shall be governed by the
substantive laws of the State of Florida (but any provision of Florida law shall not apply if
the application of such provision would result in the application of the law of a state or
jurisdiction other than Florida).




     8.8 No Stockholder Rights. No Participant hereunder shall have any rights of a
stockholder of the Company by reason of being granted an Award under the Plan until the date
on which he or she becomes a record owner of shares of Common Stock purchased upon the
exercise of an Option or otherwise received
under the Plan (the “record ownership date”). No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property), distributions, or
other rights for which the record date is prior to the record ownership date.



21









 






     8.9 Amendments; Exchanges, Termination or Suspension.




	 	(a)	 	Amendment. The Plan may be amended from time to time by written
resolution of the Board of Directors; provided, however, that no Participant’s existing
rights are adversely affected thereby without the consent of such person, and provided
further that, without approval of the stockholders of the Company, no amendment shall
(i) increase the total number of shares of Common Stock that may be issued pursuant to
Awards granted under the Plan, (ii) change the designation of the class of employees
eligible to receive Awards, (iii) decrease the minimum Option or SAR price set forth in
Section 6.3 of the Plan, (iv) extend the period during which an Option or Stock
Appreciation Right may be exercised beyond the maximum period specified in the Plan,
(v) otherwise materially modify the requirements as to eligibility for participation in
the Plan, (vi) otherwise materially increase the benefits under the Plan, or (vii)
withdraw the authority to administer the Plan as to Awards made to Employees from the
Committee. Notwithstanding the foregoing, the Board may amend the Plan to incorporate
or conform to requirements imposed by and amendments made to the Code or regulations
promulgated thereunder which the Board deems to be necessary or desirable to preserve
(A) incentive stock option status for outstanding Incentive Stock Options and to
preserve the ability to issue Incentive Stock Options pursuant to the Plan, (B) the
deductibility by the Company of amounts taxed to Plan Participants as ordinary
compensation income, and (C) the status of any Award as exempt from registration
requirements under any securities law for which the Award was intended to be exempt.
The foregoing prohibitions in this Section 8.9 shall not be affected by adjustments in shares and purchase price made in accordance with the provisions of Section 8.1.
	 
	 	(b)	 	Certain Exchanges, Etc., Stockholder Approval Required. Subject to the
terms and conditions and within the limitations of the Plan, the Committee may modify,
extend or renew outstanding Awards or accept the surrender by the affected Participants
of outstanding Awards (to the extent not previously exercised) and authorize the
granting of a new Award in substitution therefore; provided, however, other than in
connection with Section 8.1, the Committee shall not without the approval of the
stockholders of the Company (i) lower the exercise price of an Option or Stock
Appreciation Right, (b) cancel an Option or Stock Appreciation Right when the exercise
price exceeds the Fair Market Value of the underlying shares of Common Stock in
exchange for another Award (other than in connection with Substitute Awards), and (c)
take any other action with





22









 











	 	 	 	respect to an Option or Stock Appreciation Right that would be treated as a
repricing under the rules and regulations of the principal securities market on
which the Common Stock is traded. Notwithstanding the foregoing, no modification of
an Award shall, without the consent of the affected Participant, adversely affect or
otherwise impair any of the rights of the Participant or obligations of the Company
under any outstanding Award previously granted under the Plan.
	 
	 	(c)	 	Termination; Suspension. The Board of Directors may terminate the Plan
or any portion thereof at any time by written resolution. No suspension or termination
shall impair the rights of Participants under outstanding Awards without the consent of
the Participants affected thereby.






     8.10 Listing and Registration of Common Stock. Each Award shall be subject to
the requirement that if at any time the Board of Directors shall determine, in its discretion,
that the listing, registration or qualification of the Common Stock that is the subject
thereof or that is covered thereby upon any securities exchange or under any state or federal
laws, or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Award or the issuance
or purchase of Common Stock thereunder, such Award may not be exercised unless and until such
listing, registration, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors. Notwithstanding anything in
the Plan to the contrary, if the provisions of this Section 8.10 become operative, and if, as
a result thereof, the exercise of an Award is delayed, then and in that event, the term of the
Award shall not be affected. Notwithstanding the foregoing or any other provision in the
Plan, the Company shall have no obligation under the Plan to cause any shares of Common Stock
to be registered or qualified under any federal or state law or listed on any stock exchange
or admitted to any national marketing system.




     8.11 Compliance with Applicable Laws. Notwithstanding any other provision of the
Plan, the Company shall have no liability to deliver any shares of Common Stock under the Plan
or make any other distribution of benefits under the Plan unless such delivery or distribution
would comply with all applicable laws (including, without limitation, the requirements of the
Securities Act of 1933), and the applicable requirements of any securities exchange or similar
entity.




     8.12 Stock Certificates; Book Entry. To the extent that the Plan provides for
issuance of stock certificates to reflect the issuance of shares of Common Stock, the issuance
may be effected on a non-certificated basis, to the extent not prohibited by applicable law or
the applicable rules of any stock exchange.



23









 






     8.13 No Implied Rights to Employees.




	 	(a)	 	Existence of Plan. The existence of the Plan shall in no way give any
employee the right to continued employment, give any director the right to continued
service on the Board, give any employee or director the right to receive any Awards or
any compensation under the Plan, or otherwise provide any employee or director any
rights not specifically set forth in the Plan or in any Award Agreement.
	 
	 	(b)	 	Granting of Awards. The granting of Awards under the Plan shall in no
way give any employee the right to continued employment, give any director the right to
continued service on the Board, give any employee or director the right to receive any
additional Awards or any additional compensation under the Plan, or otherwise provide
any employee or director any rights not specifically set forth in the Plan or in any
Award Agreement.






     8.14 Necessity for Delay. If at any time the Committee or the Board, as the case
may be, shall determine, in its discretion, that the listing, registration or qualification of
the shares of Common Stock covered by the Plan or any Award upon any securities exchange or
under any state or federal law or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection with, the Plan, the offer, issue
or purchase of shares of Common Stock thereunder, or the grant or exercise of any Award, the
Plan shall not be effective as to later offerings of shares of Common Stock and grants of
Awards to which such determination is applicable, and each outstanding Award to which such
determination is applicable, by its terms, shall not be exercisable, unless and until such
listing, registration, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Committee or the Board, as the case may be.
Notwithstanding the foregoing or any other provision in the Plan, the Company shall have no
obligation under the Plan to cause any shares of Common Stock to be registered or qualified
under any federal or state law or listed on any stock exchange or admitted to any national
marketing system.




     8.15 Use of Proceeds. The proceeds received by the Company from the sale of
Common Stock pursuant to an Award will be used for general corporate purposes.




     8.16 No Obligation to Exercise. The granting of any Award under the Plan shall
impose no obligation upon any Participant to exercise such Award.




     8.17 Assignment by Company; Third Party Beneficiaries. The Company’s rights,
benefits and remedies under the Plan and any Award Agreements shall be enforceable by the
Company’s successors and assigns, whether by merger or otherwise, including without
limitation, the Company’s rights to enforce and obtain the benefit of any restrictive
covenants arising under any confidentiality,



24









 







noncompetition, nonsolicitation, nonacceptance and/or “lock-up” agreement to which a
Participant is a party (including without limitation, any agreement included as a part of the
Award Agreement). It is the specific intent of the Company that any successor or assignee of
the Company be a third-party beneficiary of any such agreement and that any restrictive
covenants and other provisions in any such agreements are intended to benefit any such
successors and assigns.




     8.18 Effective Date. The Plan, as amended and restated, has been approved by the
Board of Directors and shall be effective upon the approval of the stockholders of the Company
at the Company’s 2008 annual meeting (the “Effective Date”).




     8.19 Term of the Plan. The Plan shall be unlimited in duration and, in the event
of complete Plan termination pursuant to Section 8.9 shall remain in effect as long as any
Awards under it are outstanding; provided, however, that no Awards may be granted under the
Plan after the earlier of (a) the ten-year anniversary of the original Effective Date (i.e.,
June 25, 2012) (except for Awards granted pursuant to commitments entered into prior to such
ten-year anniversary) or (b) the date of a complete Plan termination pursuant to Section 8.9;
and, provided further however that, upon any termination of only a portion of the Plan
pursuant to Section 8.9 occurring prior to the ten year anniversary of the Effective Date, no
Awards may be granted under the portion of the Plan so terminated after the date of such
partial termination pursuant to Section 8.9.




     8.20 409A Compliance. The Company’s intent in entering into this Plan is that
none of the Awards made hereunder constitute a “deferral of compensation” under Section 409A
of the Internal Revenue Code of 1986, as amended (“Section 409A”). As such, the Plan shall be
interpreted, administered and maintained in all respects in a manner consistent with such
intent.




25